Posted
by
Soulskillon Saturday January 17, 2009 @11:20AM
from the if-at-first-you-don't-succeed,-open-the-checkbook dept.

mytrip points out news that an anti-piracy firm called Nexicon has been offering financial incentives to ISPs in exchange for having the ISPs police their own networks for copyright infringement. Nexicon would offer their services (for a fee) to help the ISPs pinpoint users who are illegally sharing files, and then give the users an option to "settle" through their "Get Amnesty" website. The revenue generated by such settlements would then be shared with the ISPs. Jerry Scroggin, owner of a smaller ISP in Louisiana, is still skeptical, saying, "I would still wind up losing customers. I would also have to pay Nexicon for this ... I have to survive in this economy but I don't have the big marketing dollars that bigger ISPs have. I have to fund 401(K)s and find ways not to lay off people. Giving free rein to the RIAA is not part of my business model."

Hmm... let's see... At worst you'd be in for unjustified accusation (or whatever the correct English term is for it when you accuse someone of a crime knowing he didn't do it)... or no, that would be that company you sold the logs to.

If you wanna make money as an ISP, send them some bogus logs. Some of your customers will pay because they think they got caught, some will countersue that company, some will just drop it. It's akin to extortion by proxy, only that you didn't tell your proxy to act on your beha

An ISP log isn't going to be the final answer. Someone, somewhere is going to be looking at computer hard drives, CDs, DVDd, etc. If they do not find any infringing materials there is no evidence and the matter drops.

Now I would imagine if the ISP faked up some logs to provide material for the examination of cmoputers and a lot of it turned out to be bogus you would have the ISP getting sued by both ends of this. Because examining the computers (by a qualified forensic examiner) isn't cheap and because losing your computer for a couple of weeks isn't much fun either. So I would say there are substantial risks to faking logs and the end result is that it doesn't go anywhere. No settlements. Because there is no legal action and no possibility of legal action.

Now if someone wants to go from logs to making a settlement offer to the potential offender, that is just stupid. Because you just tipped your hand and the potential offender then can delete everything from their computer, without penalty, because there is no requirement to preserve evidence. So bypassing the "seize the computer" step nets you nothing in the long run.

Someone, somewhere is going to be looking at computer hard drives, CDs, DVDd, etc. If they do not find any infringing materials there is no evidence and the matter drops.

Not so, my friend. Look at the RIAA's behavior these past few years... they go after the alleged infringer's hard drive, the hard drives of anyone that the infringer might have known, etc. They've even looked at emails and private documents on said drives, then subpoenaed people they find referenced there. Lack of evidence does not stop the RIAA from ongoing legal harassment because legitimate redress of grievance is not the object.

They don't care if you actually infringed or not, and have said that in

"I would still wind up losing customers. I would also have to pay Nexicon for this...

They do address this on their web page

THE VALUE: GetAmnesty provides content owners with a new revenue stream by collecting settlement fees on their behalf from those who illegally download their copyrighted content. Further, violators are tagged with a complete history of their downloading activities, which is easily translated to create customer profiles for online marketing purposes.

Looks like they intend for the loss of customers to be more than offset by the extortion payments you receive from some of them.

I'm betting NOT. Suing (or extorting, threatening to sue and selling "protection") your customers has never been an effective business model. You'd think they'd have learned that by now.

True, but the average customer might never know or figure out that it was the ISP that sold them out.

The ISP does have a duty to protect the privacy of a customer, I think most people know that it's hard to identify anyone without the ISP coughing up data -- legally or otherwise. Anyway, I don't think that matters. My guess is that the first act of anyone who is accused of file sharing, is to change their ISP, regardless of who found out about them, or sold them out. It only makes sense to do so. Either way, the ISP loses. And rightly so, they should not be giving up data without a solid court warrant to anyone, for any reason.

The ISP also has a duty under the DMCA Safe Harbor provisions to assist in copyright enforcement. Their responsibility to their customers not to reveal their illegal activities is not so clearly documented.

This pretty much means that a case can be made that if the ISP doesn't assist in enforcement, perhaps even to this level, that they can lose their Safe Harbor provision and suddenly become a party to every enforcement action against their customers.

The RIAA loses little to people who use Limewire to download a 128kbps mp3 of a single coyrighted song weeks after its release date. It is possible to utilize private bittorrent trackers to download music in a format that sounds as good the real CD. It would make little sense for the RIAA to target hundreds or thousands of people who downloads a few random, low-quality audio files rather than seeking the few people who download hundreds of perfect-quality albums.Those who pose a real threat to the RIAA al

All the encryption in the world won't stop you from getting a DMCA notice. In America, you can sue anyone for any reason. All they need to sue you is an IP address. So if they join a tracker and see your IP address, they'll send your ISP a note.

Most people find it easier to just pay their extortion fee than go to court.

All the encryption in the world won't stop you from getting a DMCA notice. In America, you can sue anyone for any reason. All they need to sue you is an IP address. So if they join a tracker and see your IP address, they'll send your ISP a note.

Most people find it easier to just pay their extortion fee than go to court.

Well, first off a swarming protocol like Bit Torrent generally isn't the best way to get small files like MP3s and the like. For that, something like a Gnutella client is more appropriate. There's no centralized tracker there: everything is distributed. Secondly, Ray Beckerman has pointed out that all the RIAA lawsuits he's aware of are because people were sharing (i.e. distributing) music files, not downloading them.

I think if they see a BitTorrent connection and the content is music or a movie it is pretty much a given that you don't have a license. Maybe you do, so you have a defense. But I'd say it is very much like being caught by the police with a crowbar and a TV after a store was broken into. Sure, you might be completely innocent and you will have plenty of opportunity to prove it. After they arrest you.

"content is music or a movie it is pretty much a given that you don't have a license" - that's sounds exactly like what the RIAA wants folks to think. Copyright isn't criminal law its civil. There is no question of guilt or innocence, just of whether a party damaged another or not.

So does the MPAA. Every goddamn commercial DVD has that stupid message saying "the FBI investigates criminal copyright infringement", and well they should. However, your copying a DVD and handing it to a friend does not constitute criminal copyright infringement.

Well, not yet. They are trying to criminalize it, and I suspect they'll probably succeed.

That would only work if all the ISPs gave in. In most cities it's easy enough to switch internet service providers, if one gives in to the dark side, simply abandon ship and move on to the next.
With Gustav hitting Louisiana recently many customers switched phone and internet providers simply because the others were taking too long to restore services after the outage (even though in most cases it wasn't entirely their fault). I even saw a telecom representative going door to door conducting polls and offe

Well, at least they're honest about seeing settlement fee as a revenue stream, unlike the **AA.
Except, they fail to explain that, after all your customers realize you've been selling them out, you'll be left with no customers to either sell your service to *or* extort settlement fees from.

Well, at least they're honest about seeing settlement fee as a revenue stream, unlike the **AA.
Except, they fail to explain that, after all your customers realize you've been selling them out, you'll be left with no customers to either sell your service to *or* extort settlement fees from.

Well, here's the thing. Not everybody cares about such things, because millions upon millions of broadband users just get mail and do some light browsing. They wouldn't know how to use Gnutella or Bit Torrent if their lives depended upon it.

What is going to happen, if this kind of "service" proves popular amongst ISPs, is collateral damage. Remember, all of this depends upon the ISP maintaining an accurate log of what IP address is assigned to what user account and when. Errors in logs are not uncommon,

Welcome to the world of 'Intellectual Property'. The owners of huge amounts of IP demand they be given lots of money on the premise that this will ultimately (through some only vaguely specified mechanism) result in artists being rewarded for the quality of their work.

It's call Safe Harbor and it is part of the DMCA. Actually, if they do not cooperate in copyright enforcement they lose Safe Harbor status. The question is do they have to cooperate this much? I don't know and I suspect it will take a federal judge to make that level of a decision. This isn't going to be decided simply or cheaply. Because of that it might take a really long time before it got reviewed in court.

Because who in their right mind is going to want to defend law-breaking customers? And spend

No, safe harbour applies to "common carriers" they are not a common carrier once they control what can and cant be sent over the network.

{sigh} No, you're repeating a common bit of misinformation. ISPs are not common carriers, unless they want to be. They don't, because they do not want the associated regulatory burden, even though it would guarantee them immunity from any criminal acts resulting from the use of their equipment. See, the big telcos are simultaneously phone companies (which have common carrier status) and data services (which received an exemption and are not.) Granted, modern packet-switching technology has blurred the line

Why wouldn't a Time Warner or Comcast take them up on such an offer, especially in areas where they are the only broadband provider? Ad a clause to the agreement barring disclosure, and they'll get free money.
Anyone think cable companies would avoid this for ethical reasons??

That's my thinking. Sure, this scheme is probably poison to the small, independent ISP but I can't imagine Comcast and Time Warner don't already have somebody firing up his spreadsheet to do some income stream projections. Seems like a natural win-win-win for all businesses involved. I mean, if somebody can't figure out how to connect Ubuntu to their broadband how are they going to think to research the availability of alternative, small ISPs even if they do exist for any given location?

Ad a clause to the agreement barring disclosure, and they'll get free money.

No. ISPs have to hire them to spy on their customers, and then they'll allegedly share a fraction of the profits with them. Except that this is coming from the very namesake of "Hollywood Accounting", so the most likely scenario is that they'll get a percentage of zero, which is still zero.

And then this "anti-piracy" firm sells the data gathered from the ISP's customers to online marketing firms (it's in their About page), making yet another profit and letting the ISP take the blame for the privacy breach.

So they wait until they find someone doing something illegal[1]. They offer to allow them to atone (financially, of course) for their "crimes". They then share the proceeds with the very ISP which allowed them to perform these acts in the first place.

Apart from the highly dubious moral position, this sounds like either a protection racket or entrapment, or both.

[1] although it won't ever get to court - they'll hope people will just roll over and pay up. So the legality of this "sting" won't ever be tested.

Nexicon confirms that the files downloaded violate a copyright through its technology...

It also notes that it is policing the newsgroups, my question is on the "downloading" and copyright violation - With P2P when you download, your uploading also although this is not the case for the newsgroups, when you download that is all your doing - this would be more in lines of "stealing" than the copyright violation isn't it? I was under the impression that to violate a given copyright, you need to re-distribute the said material, IE: why the mafiaa goes after P2P and the insane "settlements"...

To violate copyright, in the strictest possible sense, you merely need to copy the said material without permission. Notwithstanding, unless you distribute such copies in some way, there can be squat-all that anybody can do to even tell that you had made such a copy, so generally making copies that you don't redistribute is exempt from infringement as long as you don't publicly benefit from the making of such copies (ie, if you have a business wherein you utilize a commercial piece of software that you di

First of all, the ISP isn't doing anything illegal merely because a person using that service is. All they are doing is offering the ISP some financial incentive to produce the necessary information to convict the person who was committing copyright infringement.

So, how is this really any different than the already-existing Crimestoppers program, which offers (often substantial) rewards for information leading to conviction of a person for a particular crime?

The ISPs might not be doing anything illegal here, but I am having issues seeing how what Nexicon is doing would be legal. With the RIAA, their stated goal isn't to extort money. That is what they do a lot of the time, but it isn't the stated goal. Nexicon, on the other hand, is being bold enough to state that their goal is extortion. I can see this one ending in hilarity.

Replace internet with road network, ISP with government that manages the roads, Nexicon with traffic police, copyright infringement with traffic violations, amnesty fees with speeding tickets, and what do you get? My first car analogy!

Don't they have to go to court if the extortion attempt fails and wouldn't the ISP then have to testify?
If my ISP started to sell out its customers like that, I would have to shop around. Even if I am not a file sharer, that is still a company I could not trust (we need some revenue, so fake some logs so we can extort some customers).

I have had to babysit Comcast installations on three occasions in three different states (CT, PA, MD). Never have they shown up on time. Talk about terrible service. The first time, the cable guy showed up about 5 hours late, the second time was a no show and had to reschedule (then someone else babysat), and the third time they were 2 hours late. It is extremely frustrating and time-wasting.

Twice they have accidentally cut off my Internet connection their end. The first time they spe

This is good news for everyone. Now we can get all kinds of money from these MAFIAA groups to pay to the ISPs for their evidence in all the court cases that will be thrown out on constitutional grounds.

Just listen to Indy bands that have songs with names that include all the words of other, possibly Britney Spears titles. Then sue the MAFIAA for lost wages and aggravation!

I really hope they do get rid of Piracy. When pirates are seizing oil tankers, killing crew, and demanding millions from companies things are out of hand. I really feel for the crew of ships off of Somalia. Oh, wait, we are talking about "copyright violations" -- has anyone been hurt or demanded millions by holding a copy of Metalica hostage?

Please send e-mails to this site and request that they do help get rid of true piracy but when talking about their business model, not refer to it as piracy: info@

I don't think you understand how ISPs have DMCA Safe Harbor. They have it because they are required to cooperate with enforcement. If they fail to cooperate, they lose. So assisting in enforcement doesn't hurt them.

Now it is indeed a good question how much cooperation is actually required under the provisions of the DMCA. Clearly, turning over customer information is required, which all ISPs do when properly served. But do they have to go the extra mile as this program does? If I was marketing this program I would certainly spin it that they can cooperate or they can face losing their Safe Harbor status and suddenly become a party to infringement actions brought on their customers.

The idea that the ISP can shield cusomters from legal action has never existed. Any suggetion that the ISP can afford not to cooperate is going to go out the window pretty soon, should this actually work out.

And you clearly don't understand it. What your talking about here is not enforcement, it is investigation. The only enforcement they are required to cooperate with by the DMCA are take down notices.
"Any suggetion that the ISP can afford not to cooperate is going to go out the window pretty soon, should this actually work out." this sounds like something the RIAA wants folks to believe.

Actually it may very well hurt them depending on what the ISP does. The ISP can not legally give out any customer info without a court order. A DMCA Takedown notice is not a court order. Providing any customer without a court order is a CPNI violation and hence illegal. All copyright holders provide a link in their Takedown notices implying that the ISP is required to use the form found at that link to provide the copyright holder with the customer's info

We really need a mod for flat out wrong. This is not insightful as no ISP is considered a common carrier, The correct term for this types of service providers is Enhanced Service Providers (ESP).

"Enhanced service, essentially, is defined as everything else. This is the category of Internet Service Providers. In order to devise a bright line test, the Commission determined that where a service is offered with any level of enhancement, it is generally considered an enhanced service:

So the RIAA/MPAA's strategy in stopping the lawsuits was simply to outsource that operation to a 3rd party in an attempt to distance themselves from the negative publicity they've been getting. Should anything go wrong, this company will just be cut loose and left to deal with whatever mess they've gotten themselves into, and the cycle will start again with a new company.

So the RIAA/MPAA's strategy in stopping the lawsuits was simply to outsource that operation to a 3rd party in an attempt to distance themselves from the negative publicity they've been getting. Should anything go wrong, this company will just be cut loose and left to deal with whatever mess they've gotten themselves into, and the cycle will start again with a new company.

Much like the major recording labels' relationship to the RIAA cabal itself.

I found this through a quick google search. It seems Nexicon is the company behind YouTube's video identification software, and that it used to be known as Cyco.net, an online seller of cigarettes. After acquiring two small IT companies it had a change of heart, and decided to change its business model from selling tobacco online to providing the content industry with copyright infringement solutions. It makes perfect sense.

IANAL, but I have worked at an ISP before. ISP have some limited immunity from civil suits because they are a common carrier.
i.e. They're providing transport to another network (the internet) and the information the flows between it is the responsibility of the sender / receiver because they're merely providing the transport.
The minute they start to police the network at a content level (like Nexicon suggests) they can potentially be liable for the information passing through their networks because they are now 'aware' of the illegal content and have a responsibility to act.

The cons outweigh the pros for this time of agreement. I dont' expect many ISPs to by into this B.S.

I'm sure it isaid elsewhere, but ISPs are information services and by that designation have no common carrier status whatsoever. What they do have is Safe Harbor, as defined by the DMCA.

Part of their Safe Harbon immunity requires them to actively respond to takedown request and to cooperate with copyright enforcement. You might be able to read that as requiring them to participate in this sort of program. I know if I was marketing such a program that that is indeed the spin I would put on it.

"Part of their Safe Harbon immunity requires them to actively respond to takedown request and to cooperate with copyright enforcement. You might be able to read that as requiring them to participate in this sort of program. I know if I was marketing such a program that that is indeed the spin I would put on it."

Actually no it does not require an SP to "cooperate with copyright enforcement." SPs are required to follow very specific steps to meet the requirements of the Safe Harbor provision. It does not i

It is a myth that ISPs are common carriers, if they were then the safe harbor provision of the DMCA would be redundant. Please stop spreading this myth and to those who modded you informative please learn the law.

Before there were constraints put on traffic light tickets from cameras, the companies falsely ticketed drivers to get extra money. They started to widen the gap of when a ticket was issued to the point that people were getting tickets when they crossed the line before the light turned red.
This solution sounds like it will lead to the same problem. There will be no protection over the gray area and the general public (who cannot afford a lawyer) will get screwed. In the end the two companies involved w

Cox has been charging customers fees for file sharing now. Hasn't happened to me yet, but local news sources have reported it. If you use wifi and protect your network, they'll still hold you responsible if an intruder manages to get onto the network and download.

"Further, violators are tagged with a complete history of their downloading activities, which is easily translated to create customer profiles for online marketing purposes"
This looks like they'll be using file sharing statistics to provide the content owners a benefit too. Seems only fair that the file sharers who, by their very actions, actually give them the information about what is popular and what is not should get compensated for that. Instead they will be fined. Way to go Nexicon/RIAA!

Suppose that an ISP wants to cooperate with Nexicon to get their hands on some of the settlement loot. Suppose further that it costs the ISP nothing to implement detection and collect bounties (in actuallity it would cost them something, but assume for this example that it doesn't). The question(s) become (a) how much will Nexicon split with us AND (b) how many monthly ISP subscriber payments is that worth?

Had to post this as well, want to know how you go from an online tobacco dealer to getting in bed with government and the telecom industry?

Nexicon, Inc., formerly Cyco.Net, Inc. (OTCBB:CYKE), a leading provider of secure and efficient networking and communication solutions, today announced the launch of two recently formed strategic partnerships, with Butch Maki & Associates and John Badal of Badal & Associates, to develop further private and institutional business relationships in the homeland secu

Sure... as long as you are also willing to press charges against anyone who copies the contents of that folder on the grounds of computer trespassing (that is, assuming that a person who copied the contents of your folder from you could be identified, then you would be obligated to press charges against that person). Otherwise, if you knowingly chose to not protect your property, then it can reasonably be construed that any person who encroaches on it does so with your permission, regardless of what you pr

I have seen at least ten people get broadband specifically for downloading. Six of those paid extra for more bandwidth to facilitate downloading HD movies and FLACs, two of them justified their extra bandwidth for work, but both of them wouldn't need the extra bandwidth for work if they hadn't already maxed out their bandwidth on downloading music, games, and movies.With users like this who will keep paying no matter how much the ISP's ramp up the costs, what possible incentive would the ISP's have for losi

Well, if you have a near-monopoly on broadband you can persecute filesharers so that you are left with the customers who pay just as much per month as the filesharers, but who use very little bandwidth. You might _never_ need to upgrade your infrastrucure.

This campaign is looking more and more like an inquisition. It is the effort of a group to enforce their belief system. Any tactic is justified if it will maintain their orthodox beliefs.

These beliefs don't have to make sense. They just have to be valued. Copyright infringement equals piracy. Copying music is the same as theft of tangible property. Unapproved distribution of an idea requires infinite punishment. These are not rational thoughts. They are elements of a repressive belief system.

For havens sake, do the content providers realize how much profit loss the ISP's would suffer when they loose the last bit of faith of their customers? The first ISP's that get the reputation of fu*king with their customers would face a massive loss of their customer base. I can't imagine this would be equalized with the settlements, especially since the users (the ones left) would accommodate and use new means for their illicit content distribution (new technologies and services for this infrastructure wou

I'm booting customers off all the time for p2p filesharing. I might as well get paid for it. My ISP clearly states that it's not allowed, and clearly states that the network is a shared resource. So I'm not tricking anyone. I even tell them when I set them up that p2p is not allowed and it causes bandwidth issues for everyone else.

Just yesterday some lady downloaded 23GB of stuff. Not sure what it was, but it pretty much knocked out internet for about 30 other people. 1500+ connections open to that one computer. I gave her the boot. Told her good luck finding internet access out here in the middle of nowhere. Dial-up doesn't even work.

I reserve the right to deny access to my network to anyone for any reason. Especially illegal activity. No, downloading music for free is not legal. No downloading movies for free is not legal. Gesh, just get Netflix or something.

This has to be the sorriest ISP in existence. Surely you are trolling?